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Don't proceed without consent

Much has been said about the surfeit of red tape that constrains commercial enterprise, but it is still a foolhardy developer who proceeds with a development without first obtaining all the proper con

A recent UK case has highlighted the risks involved in proceeding with a development without proper consent. R (on the application of Rockware Glass Limited) v Chester City Council and Quinn Glass Limited was a legal challenge (brought by Rockware Glass) to the lawfulness of a major glass manufacturing plant constructed by one of its competitors (Quinn Glass) without the benefit of planning permission, and brought into operation on the basis of an IPPC permit that did not require the use of Best Available Techniques (BAT).

Quinn Glass argued that it would suffer significant prejudice if the IPPC permit required for its development (which was by then operational) were quashed. In response the judge said: "But it is also right to say that the problems which this challenge has caused and will cause Quinn are to a large part of its own making ... It has taken a calculated risk with its eyes open. I do not consider that the adverse effects which it will sustain are such as to strike out a claim which I have determined is well made and was made promptly. I feel nothing but sympathy with those employees who assumed that their new employer was in a position to operate its plant."

The permit was quashed

So, what are the main consents required for development to proceed, the risks attendant in proceeding without consent or with flawed consents, and the inter-relationship between different consent regimes? And how were these principles applied in the case of Quinn Glass?

Proper consent

For any major development the principal consent needed is planning permission pursuant to the Town and Country Planning Act 1990, which defines 'development', at section 55(1), as: 'the carrying out of building, engineering, mining operations in, on, over or under land, or the making of any material change in the use of any buildings or other land'.Subject to certain limited exceptions, planning permission is required for the carrying out of any development of land.The process of obtaining planning permission entails the submission of a planning application to the local planning authority. For developments beyond a certain threshold, and/or with particular environmental impacts, an environmental statement pursuant to the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 may also be required (to be determined, in cases of doubt, by a request for a screening opinion from the local planning authority). Following consideration of the planning application, as well as any accompanying environmental statement, the local planning authority is normally entitled to determine whether planning permission should be granted (although in certain cases a planning application may be 'called in' by the Secretary of State for his determination).

In addition to planning permission, certain categories of development, particularly those involving industrial processes, also require authorisation under the Pollution Prevention and Control (England and Wales) Regulations 2000. Like an application for planning permission, an application for an IPPC permit involves the submission of information to the appropriate regulator, normally the Environment Agency.

Proceeding without either of these fundamental consents, or on the basis of a flawed consent, represents a significant gamble, as will be seen below.

Dangers

The carrying out of development without planning permission is unlawful, but is not in itself illegal. However, once a local planning authority has issued an enforcement notice against unlawful development, the notice has come into force, and has not been complied with, a criminal offence is committed. Unlike failure to comply with the planning regime, failure to comply with PPC Regulations constitutes a criminal offence from the initial breach. Once an offence is committed under either regime, significant fines can accrue.

In addition, even where consent has ostensibly, been granted under either regime, there remains a risk that such consent may be subject to legal challenge which, if successful, could leave the development without authorisation.

This is because, as an administrative decision, the grant of planning permission, or other consent, is susceptible to challenge by way of judicial review.Such a challenge can be brought by any person with sufficient interest ('standing') in the decision, and addresses the lawfulness of the decision-making process, rather than the merits of the decision itself. The time limit for bringing such a claim is three months from the notice of decision.

In practice it is a challenge by way of judicial review that represents the biggest risk to a developer. Such challenges are commonly brought by those opposed to the proposal, such as local interest groups, or by competitors of the applicant.

In the Quinn Glass case, the question of standing was considered in considerable detail. The judge accepted Quinn's submission that the mere fact that an applicant for judicial review was a commercial competitor did not in itself provide the necessary standing. However, after considering the specific circumstances to be found in the container glass industry, he concluded: "Industrialists in that industry have a legitimate cause to complain if standards arrived at are then not applied in a consistent manner, based on a proper application of the standards and principles thus arrived at."

While the threat of a judicial review can never be entirely ruled out, steps can be taken to mitigate the prospect of such a challenge succeeding.

First, preparation of the application for consent should be meticulous, to ensure that all applicable legal requirements are met. Secondly, detailed scrutiny should be given to the decision-making process to be adopted by the regulator or other decision maker. Thirdly, the process of obtaining planning and IPPC consents should, ideally, be an iterative process, each process informing the other prior to any consents being granted or work being started.

What is clear from the Quinn Glass case is that the application for the IPPC permit was not prepared meticulously. This fault was then compounded by the fact that the regulator had little experience in the determination of IPPC permits for this kind of development and was ill-equipped to make the judgments found to be necessary by the court. Further, Quinn Glass regarded the processes of obtaining planning permission and IPPC consent to be entirely independent of one another.

It should be noted that the availability of judicial review is not confined to the original consent but may also be available where changes are made to that consent. In earlier proceedings Rockware successfully challenged the lawfulness of the basis upon which Quinn had been allowed to increase the size of the development from that authorised under an earlier consent.

The basis of that challenge was that the grant (or purported grant) of planning permission for the extension of the development should, as a matter of law, have been accompanied by a new environmental statement and should also have been the subject of a screening opinion by the local planning authority. As a consequence of the quashing of the planning consent, Quinn was forced to submit a new application to regularise the development that it had already started. That application has been called in by the Secretary of State and is currently the subject of a public inquiry.

Inter-relationship of planning and pollution control regimes

A key issue that the court grappled with in the Quinn Glass case was the relationship between the planning and pollution control regimes.

Quinn had submitted that it was not open to the regulator to question the configuration or design solution selected by the applicant when considering whether BAT had been adopted. The court rejected this and said: '... if a BAT analysis is carried out, then choice of process has to be examined, as does the design of the furnace. It would be quite illogical, and inconsistent with the fundamental objectives of the statutory code, if the aspects of design which could be examined were to exclude the size of the furnace, or (as in this case) the choice of a two furnace as opposed to a three furnace design to reach the proposed production capacity.'

The court also considered policy in PPS 23,which states: 'The planning and pollution control systems are separate but complementary ... The planning system should focus on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than the control of processes or emissions themselves. Planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it.'

The judge concluded: "... if the pollution control authorities and regulators are prevented from asking whether an alternative process configuration is appropriate and would have reduced emissions, then the planning system will be the only forum where that can be addressed ... The result is that there will be even longer debates in the planning context about matters best suited to decisions made under the pollution control code, and a sensible division of responsibility will have been negated."

From this it is clear that developers embarking on developments involving both the planning and pollution control regimes must adopt a holistic approach, so that the design of the installation sought under the planning regime does not prejudice the ability to achieve BAT as required under the pollution control regime.

Implications

As a result of successful legal challenges brought by Rockware, the Quinn Glass plant at Elton has neither planning permission nor an IPPC permit, but nonetheless continues to operate pending the hearing of an appeal by Quinn. On this basis it might be concluded that the dangers of proceeding with a development without proper consents is small.However, Quinn Glass awaits the outcome of a public inquiry to determine whether it should be granted retrospective planning permission for the development it has already constructed and brought into use. There is no guarantee that planning permission will be granted retrospectively, or if it is granted, that it will not be subject to conditions that affect the viability of the plant.

Of arguably greater concern, however, will be the implications of the quashing of the IPPC permit. While Quinn Glass has been granted permission to appeal, it is by no means certain that the Court of Appeal will overturn the decision. As a consequence, extensive adjustments to the plant may be necessary to enable BAT to be achieved.The risk remains, therefore, that Quinn Glass may have to make significant adjustments to its development, at a cost that could outweigh any commercial advantage it may have gained by bringing its plant into operation without first obtaining the proper consents. During the proceedings Quinn Glass made great play of the costs it would incur if forced to shut down its furnace; such an action would cause it to breach contracts with key customers and lay off significant numbers of staff.

The nearest thing to a risk free course for anyone planning on embarking on major development is to ensure that all proper consents are lawfully obtained, and to await the expiry of the judicial review periods, before starting development.

Christopher Bowes is a partner at DLA Piper Rudnick Gray Cary and heads the planning practice in the firm's Manchester office, Tel: 0870 0111111, www.dlapiper.com/uk DLA Piper Rudnick Gray Cary acted for Rockware in the case referred to in this article.